[164] WEBB, Judge.
We consider first the defendants’ appeal. The defendants assign error to testimony by the plaintiff and a police officer that Mr. Tate was convicted in district court of assaulting the plaintiff, Mr. Tate having pled not guilty to the criminal charge. We believe this assignment of error has merit. In this jurisdiction evidence of a person’s conviction in a criminal prosecution for the very act which constitutes the basis of liability in a civil action for damages is not admissible in the civil action. Tidwell v. Booker, 290 N.C. 98, 225 S.E. 2d 816 (1976); Beanblossom v. Thomas, 266 N.C. 181, 146 S.E. 2d 36 (1966); Trust Co. v. Pollard, 256 N.C. 77, 123 S.E. 2d 104 (1961). For this error, we hold there must be a new trial.
The defendant Friendly Parking Service, Inc. also contends that it was error not to submit an issue to the jury as to whether Mr. Tate was acting in the course and scope of his employment at the time of the alleged assault. We hold this issue should have been submitted to the jury. The evidence is uncontradicted that Mr. Tate was an employee of Friendly Parking Service, Inc. at the time of the alleged assault. The jury must determine whether Mr. Tate acted within the scope of his authority and was about his master’s business or whether he stepped aside from his employment to commit a wrong prompted by a spirit of vindictiveness or to gratify his personal animosity or to carry out an independent purpose of his own. See Clemmons v. Insurance Co., 274 N.C. 416, 163 S.E. 2d 761 (1968) and Robinson v. McAlhaney, 214 N.C. 180, 198 S.E. 647 (1938).
The defendants also assign as error the court’s allowing the plaintiff and his wife to testify as to the mental anguish which the plaintiff suffered as a result of the alleged assault. They rely on McCracken v. Sloan, 40 N.C. App. 214, 252 S.E. 2d 250 (1979); Ross v. Yelton, 39 N.C. App. 677, 251 S.E. 2d 666 (1979); McDowell v. Davis, 33 N.C. App. 529, 235 S.E. 2d 896 (1977); Alltop v. Penney Co., 10 N.C. App. 692, 179 S.E. 2d 885 (1971). We do not believe any of the cases are applicable to the case sub judice. McCracken involved an assault by smoking a cigar in the presence of a person who objected to smoking. There was no evidence that the plaintiff suffered physical injury from the cigar smoke. We held that evidence of mental distress by the person who smelled the [165] cigar smoke would not support an action for battery against the person who smoked a cigar in his own office. In Ross, we held that qualified medical testimony is required to prove that mental anguish caused a physical illness. In McDowell, this Court held that in an action based on negligence there is no recovery for emotional distress not caused by some physical impact or injury. In Alltop, it was held that summary judgment was proper for defendant because the plaintiff had not proved she was damaged. In the case sub judice, the plaintiffs claim is not based on negligence. He has alleged and offered evidence that the defendant Tate assaulted him by pointing a pistol at him. Evidence of his mental anguish as a result of this assault is admissible. He and his wife may testify to it. See Trogden v. Terry, 172 N.C. 540, 90 S.E. 583 (1916).
The plaintiff assigns as error the court’s granting the defendants’ motion for judgment notwithstanding the verdict as to punitive damages. Punitive damages may be recovered in an action for assault. See Allred v. Graves, 261 N.C. 31, 134 S.E. 2d 186 (1964). If there is evidence of an aggravated criminal assault, an issue of punitive damages should be submitted to the jury. The awarding of punitive damages and the amount to be allowed rests in the sound discretion of the jury although the amount assessed is not to be excessively disproportionate to the circumstances of contumely and indignity present in the case. See Worthy v. Knight, 210 N.C. 498, 187 S.E. 771 (1936). In this case we hold that evidence of an aggravated and criminal assault was such that the punitive damage issue was properly submitted to the jury. It was error to grant the defendants’ motion for judgment notwithstanding the verdict. It may have been that, in light of the evidence, the court felt the punitive damages awarded were excessive. It did not set the verdict aside or reduce it in its discretion, however, and that question is not before us for review.
The plaintiff’s second assignment of error is to the exclusion of evidence as to the financial worth of the Friendly Parking Services, Inc. In this case the plaintiff offered evidence as to the assets, liabilities, income tax returns and the net worth of Friendly Parking Services, Inc. which was excluded. This was error. Evidence of a defendant’s ability to respond in damages is competent in cases warranting punitive damages. See Harvel’s, Inc. v. [166] Eggleston, 268 N.C. 388, 150 S.E. 2d 786 (1966) and Strickland v. Jackson, 23 N.C. App. 603, 209 S.E. 2d 859 (1974).
The original defendants joined the third party defendant for the purpose of recovering from the third party defendant any recovery by the plaintiff against the original defendants. The third party defendant did not participate in the trial between the original parties. After the verdict had been gendered in the original action, the court entered a judgment in favor of the original defendants against the third party defendant for the compensatory damages and legal fees. The third party defendant paid this judgment and it was cancelled.
The plaintiff contends the original defendants are estopped from appealing as to the compensatory damages by their accepting payment and cancelling the judgment against the third party defendant. The plaintiff cites no cases as authority for this proposition. He argues that it would allow the original defendants to be unjustly enriched at the expense of the third party defendants if the original defendants should prevail at a new trial. The plaintiff has not been damaged and cannot complain if the third party defendant has made a payment to the original defendant which the original defendant was not entitled to receive. The plaintiff has not changed his position by relying on this action by the original defendant. Estoppel does not apply.
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[164] WEBB, Judge.
We consider first the defendants’ appeal. The defendants assign error to testimony by the plaintiff and a police officer that Mr. Tate was convicted in district court of assaulting the plaintiff, Mr. Tate having pled not guilty to the criminal charge. We believe this assignment of error has merit. In this jurisdiction evidence of a person’s conviction in a criminal prosecution for the very act which constitutes the basis of liability in a civil action for damages is not admissible in the civil action. Tidwell v. Booker, 290 N.C. 98, 225 S.E. 2d 816 (1976); Beanblossom v. Thomas, 266 N.C. 181, 146 S.E. 2d 36 (1966); Trust Co. v. Pollard, 256 N.C. 77, 123 S.E. 2d 104 (1961). For this error, we hold there must be a new trial.
The defendant Friendly Parking Service, Inc. also contends that it was error not to submit an issue to the jury as to whether Mr. Tate was acting in the course and scope of his employment at the time of the alleged assault. We hold this issue should have been submitted to the jury. The evidence is uncontradicted that Mr. Tate was an employee of Friendly Parking Service, Inc. at the time of the alleged assault. The jury must determine whether Mr. Tate acted within the scope of his authority and was about his master’s business or whether he stepped aside from his employment to commit a wrong prompted by a spirit of vindictiveness or to gratify his personal animosity or to carry out an independent purpose of his own. See Clemmons v. Insurance Co., 274 N.C. 416, 163 S.E. 2d 761 (1968) and Robinson v. McAlhaney, 214 N.C. 180, 198 S.E. 647 (1938).
The defendants also assign as error the court’s allowing the plaintiff and his wife to testify as to the mental anguish which the plaintiff suffered as a result of the alleged assault. They rely on McCracken v. Sloan, 40 N.C. App. 214, 252 S.E. 2d 250 (1979); Ross v. Yelton, 39 N.C. App. 677, 251 S.E. 2d 666 (1979); McDowell v. Davis, 33 N.C. App. 529, 235 S.E. 2d 896 (1977); Alltop v. Penney Co., 10 N.C. App. 692, 179 S.E. 2d 885 (1971). We do not believe any of the cases are applicable to the case sub judice. McCracken involved an assault by smoking a cigar in the presence of a person who objected to smoking. There was no evidence that the plaintiff suffered physical injury from the cigar smoke. We held that evidence of mental distress by the person who smelled the [165] cigar smoke would not support an action for battery against the person who smoked a cigar in his own office. In Ross, we held that qualified medical testimony is required to prove that mental anguish caused a physical illness. In McDowell, this Court held that in an action based on negligence there is no recovery for emotional distress not caused by some physical impact or injury. In Alltop, it was held that summary judgment was proper for defendant because the plaintiff had not proved she was damaged. In the case sub judice, the plaintiffs claim is not based on negligence. He has alleged and offered evidence that the defendant Tate assaulted him by pointing a pistol at him. Evidence of his mental anguish as a result of this assault is admissible. He and his wife may testify to it. See Trogden v. Terry, 172 N.C. 540, 90 S.E. 583 (1916).
The plaintiff assigns as error the court’s granting the defendants’ motion for judgment notwithstanding the verdict as to punitive damages. Punitive damages may be recovered in an action for assault. See Allred v. Graves, 261 N.C. 31, 134 S.E. 2d 186 (1964). If there is evidence of an aggravated criminal assault, an issue of punitive damages should be submitted to the jury. The awarding of punitive damages and the amount to be allowed rests in the sound discretion of the jury although the amount assessed is not to be excessively disproportionate to the circumstances of contumely and indignity present in the case. See Worthy v. Knight, 210 N.C. 498, 187 S.E. 771 (1936). In this case we hold that evidence of an aggravated and criminal assault was such that the punitive damage issue was properly submitted to the jury. It was error to grant the defendants’ motion for judgment notwithstanding the verdict. It may have been that, in light of the evidence, the court felt the punitive damages awarded were excessive. It did not set the verdict aside or reduce it in its discretion, however, and that question is not before us for review.
The plaintiff’s second assignment of error is to the exclusion of evidence as to the financial worth of the Friendly Parking Services, Inc. In this case the plaintiff offered evidence as to the assets, liabilities, income tax returns and the net worth of Friendly Parking Services, Inc. which was excluded. This was error. Evidence of a defendant’s ability to respond in damages is competent in cases warranting punitive damages. See Harvel’s, Inc. v. [166] Eggleston, 268 N.C. 388, 150 S.E. 2d 786 (1966) and Strickland v. Jackson, 23 N.C. App. 603, 209 S.E. 2d 859 (1974).
The original defendants joined the third party defendant for the purpose of recovering from the third party defendant any recovery by the plaintiff against the original defendants. The third party defendant did not participate in the trial between the original parties. After the verdict had been gendered in the original action, the court entered a judgment in favor of the original defendants against the third party defendant for the compensatory damages and legal fees. The third party defendant paid this judgment and it was cancelled.
The plaintiff contends the original defendants are estopped from appealing as to the compensatory damages by their accepting payment and cancelling the judgment against the third party defendant. The plaintiff cites no cases as authority for this proposition. He argues that it would allow the original defendants to be unjustly enriched at the expense of the third party defendants if the original defendants should prevail at a new trial. The plaintiff has not been damaged and cannot complain if the third party defendant has made a payment to the original defendant which the original defendant was not entitled to receive. The plaintiff has not changed his position by relying on this action by the original defendant. Estoppel does not apply.
Judge Martin has voted to dismiss the defendants’ appeal and remand for judgment on the punitive damage issue. He argues that as to the compensatory damage issue, neither of the appealing defendants is an aggrieved party. As to the punitive damage issue, he argues that it was error to set it aside, and we should order it reinstated. If the only issue raised on appeal were the compensatory damage issue, we might agree with Judge Martin. We have held that several substantial errors were made in reaching the verdicts on the two issues. Although the defendants did not appeal on the punitive damages issue, we hold that because of the errors involved in the trial of this issue, the ends of justice require a new trial as to punitive damages. Watkins v. Grier, 224 N.C. 334, 30 S.E. 2d 219 (1944) and In re Will of Herring, 19 N.C. App. 357, 198 S.E. 2d 737 (1973). Having determined there should be a new trial as to the punitive damages, we believe there should be a new trial as to all issues. We believe [167] there is a substantial likelihood that the two issues were so intertwined in the minds of the jurors that it would result in an injustice to remand this case for a trial on one issue only. See Robertson v. Stanley, 285 N.C. 561, 206 S.E. 2d 190 (1974).
We hold there should be a new trial on all issues.
New trial.
Chief Judge MORRIS concurs.
Judge Martin (Harry C.) dissents.